Misclassification of IT Employees to Evade Overtime Pay Laws

Protecting the Rights of New York Workers Employed in IT Tech Support

State and federal laws protect the rights of workers in New York to overtime wages when they work more than forty hours in a week. Narrow exemptions apply to these rules, and unfortunately, some employers attempt to misclassify their employees in an attempt to evade paying them. One area prone to misclassification concerns the exemption for certain computer employees.

The Exception for Certain Computer Employees

Certain computer employees are exempt from overtime pay requirements under federal law. Sections 13(a)(1) and 13(a)(17) of the Fair Labor Standards Act establish exemptions from overtime pay for computer systems analysts, programmers, software engineers, and similarly skilled workers. See here. To qualify for this exemption, the primary duties of such an employee must include:

The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications

The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications

A combination of the aforementioned duties which requires the same level of skills

29 CFR §541.100 also requires that exempt employees must receive at least $455 in compensation per week or be paid on an hourly basis of not less than $27.63 per hour.

How Some Employers Use the Exception to Avoid Paying Overtime to Any Computer Employees

Of course, not every worker employed in the computer field will qualify for this exemption. Many tech support positions or help desk employees have job duties that do not meet the statutory requirements for exemption. Similarly, employees who simply use computer hardware and software as an integral part of their position will not necessarily qualify for the exemption.

The New York State Department of Labor addressed this issue in an interesting case involving a worker employed as a database analyst. The employer described the work as a “data intensive position in the financial industry,” which required the worker to analyze the performance of asset-backed securities to resolve cash flow payment. The employee also acted as a liaison for computer data businesses. Ultimately, the Department of Labor concluded that these duties did not meet the statutory requirements for the job duties of an exempt computer worker.

As another example, a worker who installs and maintains software on the company computers will likely not meet the requirements for the exemption. Why? Because she does not work as a systems analyst or programmer. Instead she installs and maintains software. Thus, even though her work depends on computers, because her job duties do not encompass systems analysis or software engineering, she is likely not exempt and therefore entitled to overtime if she works more than 40 hours in a week.

Properly Analyzing the Facts to Determine Whether an Exemption Applies

The first step is to determine whether an overtime exemption does, in fact, apply to your particular employment situation. Overtime exemptions are highly dependent upon the specific facts of an employee’s work. Furthermore, more than one exemption may be applicable and an analysis of other relevant exemptions (e.g., the executive, administrative, and professional exemptions) will be necessary. An experienced employment attorney can help you determine whether you are exempt from overtime requirements.

Misclassification is Prohibited by State and Federal Employment Laws—Contact a New York City Overtime Attorney

The right to overtime is protected by law. If you believe that you were misclassified or underpaid for overtime work, contact a New York City wage and hour attorney as soon as possible. Braverman Law PC has substantial experience protecting the rights of workers in and around New York City. Call (212) 206-8166 today to schedule a consultation with an employment law attorney. The sooner you bring an attorney to your case, the better we can protect your legal rights.

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